ELR Citation: ELR 20962
No(s). 89-640 (U.S. Jun 27, 1990)

The Court holds that an environmental organization lacks standing to challenge the Bureau of Land Management's (BLM's) decision to lift protective restrictions on 180 million acres of public land. The National Wildlife Federation (NWF) alleged that BLM illegally opened public lands to commercial development under its land withdrawal review (LWR) program without completing resource management plans under the Federal Land Policy and Management Act (FLPMA) or environmental impact statements under the National Environmental Policy Act (NEPA). In support, NWF submitted affidavits of two of its members, which provided examples of areas where the affiants' recreational use had been adversely affected by the LWR program's development activities. The Court first observes that recreational use and aesthetic enjoyment are among the sorts of interests FLPMA and NEPA were designed to protect. However, the Court holds that the affiants' general assertion of recreational use "in the vicinity of" lands affected by the LWR program does not meet the level of specificity required under Federal Rule of Civil Procedure 56 to demonstrate a genuine issue for trial. The court of appeals erred in holding that any factual ambiguity in the affidavits must be resolved in favor of NWF for purposes of summary judgment. A Rule 56 summary judgment motion, unlike a Rule 12(b) motion to dismiss, does not presume that general allegations embrace those specific facts necessary to support a claim.

The Court next holds that four additional NWF-member affidavits submitted in response to a postargument briefing order are insufficient under §§702 and 704 of the Administrative Procedure Act (APA) to enable NWF to challenge the breadth of the LWR program. The LWR program is not agency action within the meaning of the APA, but simply refers to the continuing operations of BLM in reviewing and classifying public lands. Even the actions identified in the six individual affidavits are not ripe for challenge until more immediate harm to NWF results. For example, agency action ripe for APA challenge will have occurred upon granting of a mine permit application by BLM. NWF must challenge final agency action case by case, or use legislative initiative, rather than seeking wholesale improvement in management of the LWR program by judicial decree. The Court further holds that NWF's postargument submission of the four additional affidavits was untimely under Rules 56 and 6, which require filing not later than one day before hearing. NWF received timely notice before argument on summary judgment that its standing was at issue, and the time for filing additional evidence was the day before argument. Although the district court could have admitted the four affidavits despite NWF's lack of a motion, lack of a showing of cause, and lack of excusable neglect, it did not abuse its discretion in rejecting them. NWF acted at its own risk in failing to buttress its position earlier. To receive NWF's request to supplement the record, the district court would have had to construe a sentence in a footnote to NWF's 20-page memorandum as equivalent to a "motion made" to file additional affidavits. The Court observes in its own footnote that it is unreasonable to subject district judges to reversal for failing to recognize motions buried in this fashion. Finally, the Court holds that NWF does not have standing to seek APA §702 review based on injury to its ability as an organization to carry out the tasks its members paid it to perform. NWF's affidavit alleging injury through deprivation of information is conclusory, devoid of specific facts, and fails to identify any particular agency action as the source of injury.

A dissent would hold that NWF's affidavits were sufficient to establish standing, and the district court abused its discretion by refusing to consider supplemental affidavits filed after argument on the parties' cross-motions for summary judgment.

[The circuit court's decision is published at 19 ELR 20968. Earlier decisions in this litigation are published at 16 ELR 20422 and 20427, 18 ELR 20328 and 20857, and 19 ELR 20341. Briefs and other documents from this litigation are digested at ELR Pend. Lit. 65866, 65935, 66039, and 66083.]

Counsel for Petitioners
John G. Roberts Jr., Acting Solicitor General; Richard B. Stewart, Ass't Attorney General; Lawrence G. Wallace, Deputy Solicitor General; Lawrence S. Robbins, Ass't to the Solicitor General
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2217

Peter R. Steenland Jr., Anne S. Almy, Fred R. Disheroon, David A. Kubichek, Vicki L. Plaut
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2748

Counsel for Respondent
E. Barrett Prettyman Jr., John C. Keeney Jr., David G. Leitch, Scott H. Reisch
Hogan & Hartson
555 13th St. NW, Washington DC 20004
(202) 637-5685

Kathleen C. Zimmerman, Norman L. Dean Jr.
National Wildlife Federation
1400 16th St. NW, Washington DC 20036
(202) 797-6864